Subjective proofs and Trials: Two cases illustrate the swamp facing employers

First, some background on what is ‘permanent disability’ for the purposes getting an award in New Jersey. The first rule is that Workers’ Compensation Judges must consider impact of injury on petitioner’s ability to work in view of his limited educational and intellectual resources and not base a decision on a “range” of disability for a particular type of injury. A Judge is supposed to look at the impact of an injury in terms of ‘the whole man” – his ability to work as a ‘working unit.’ In other words, a judge may not, in her decision on the record, state “a fractured ankle is worth 15% of the foot” – a Judge should consider the particular circumstance of each claimant. This of course, is subjective.

The second rule is that an alleged disability must be shown by “demonstrable objective medical evidence.” While this sounds scientific, it is not. The courts have consistently held that “range of motion tests” and other subjective tests (relying on the judgment of the ‘tester’) are to be considered “demonstrable objective medical evidence.” However, our case law is quite clear: a judge must have at least some objective medical evidence of permanent disability – and must specifically cite tot hat objective medical evidence in her decision – in order to be upheld.

Finally, the third rule is that even if the claimant can’t show an impact on his ability to work, he is still entitled to an award of permanency. So, even if petitioner failed to establish lessening to material degree of his working ability, he can still be found to be ‘permanently disabled.’ This neatly defeats employer’s arguments in cases where the claimant is now working more hours, or at a more physically demanding position, than he was before the alleged ‘disabling incident.’ Obviously, this rule values the subjective (the claimant’s testimony about his ability to work) over the objective (the employer showing that the employee is actually working longer hours or in a more demanding job).

All of these rules (taken directly from the prevailing case law) combine to make findings as to permanency very unscientific, not to say unpredictable. The two cases decided this July are interesting because in each case the appealing party argued that the Judge of Compensation’s decision was incorrect in how the judge valued subjective testimony. In the first case we discuss (Thomas), the Judge was also affirmed, but on the grounds that the petitioner’s case was rightly thrown out of court because it was based on only subjective complaints. In the second case we talk about, the Judge’s reliance on ‘subjective’ complaints in light of contradictory objective proofs (videotape evidence) as the basis for disability was upheld.

Thomas v. Newark Public Schools Systems.

In Thomas, the Judge of Compensation decided that the claimant, a former teacher, was not eligible for benefits for her alleged pulmonary disability. In Thomas, the claimant alleged that her employment with the Newark Public Schools System from 1984 to 2000 worsened a pre-existing asthma condition. the claimant testified that she was exposed to fumes and inhaled substances during her employment. Specifically, the claimant stated that she sometimes notice fumes that smelled ‘like gasoline or a furnace smell.’ The claimant testified that the ceilings in some rooms in the school building leaked, causing the rooms yo be damp and moldy.

A teacher union inspector visited the school building about six months after the claimant;s last day of work and documented elevated levels of carbon dioxide, obstructions in front of some air vents and limited water damage. The claimant also presented the testimony of a pulmonary expert who opined that she suffered from ‘chronic occupational asthmatic bronchitis’ and obstructive pulmonary disease.

The Judge listened to the claimant, but found that her testimony was full of “self serving statements” and uncorroborated. The Judge also decided that the claimant’s medical expert relied exclusively on information provided by the claimant, and that his opinion was not based on ‘any objective medical evidence.’ The Judge noted that the claimant’s condition did not improve after she left the employment, which undermined the claim that the employment environment worsened the claimant;s condition. Finally, and most damning, the Judge stated that the claimant had presented only “subjective characterization of the workplace environment.”

The claims were dismissed.

The Appellate Division, reviewing this case, agreed with the Judge of Compensation finding that the petitioner “has done no more than offer subjective characterization of her work environment [and] failed to provide quantitative evidence concerning the level of pollution she was exposed to, the component elements of the pollution, or the duration of exposure in any measurable manner.” The case remains dismissed.

Case Two: Worth v. UPS

In the second case, the Judge of compensation discounted the surveillance videotapes made of the claimant by the respondent, and instead relied upon the claimant’s statements about his current condition in giving the claimant an award. This case is a strong contrast to the first because here the Judge of compensation found the claimant had increased disability despite the fact that the objective evidence strongly controverted the petitioner’s claims.

In Worth, the claimant testified that a leg injury sustained at work had worsened and that he was due additional compensation. The employer provided medical treatment,, including injections onto the claimant;s leg. During the trial, the claimant testified that he “could not walk up or down stairs without using a railing” could not “enter and exit trucks without the assistance of a hand bar” and stated that “he did not believe he could continue to perform his [work] duties.”

After this testimony, the employer produced a videotape which “clearly shows the petitioner climbing stairs and getting in and out of truck without the use of a handrail.” In short, the claimant exaggerated his complaints, telling the Judge his condition was worse than it actually was in order to obtain a larger award.

The Judge of Compensation issued a decision stating that although he believed the claimant was lying about how bad his condition actually was, he was still entitled to compensation based on the report of his expert physician (the claimant’s hired expert), and gave the claimant an increase over the pre-existing disabilities.

The Appellate Division, citing ‘deference’ to the findings of the Judge of Compensation, agreed with the Judge of Compensation, and did not disturb this ruling.

Conclusions.

These two decisions help form a picture of the New Jersey workers’ Compensation System: in one case, the ‘subjective’ nature of the proofs offered by the claimant were discounted by the Judge and the case dismissed. In a second case, decided just six days before, a Judge ignored the objective evidence and awarded increased compensation to a claimant who was clearly lying about his complaints under oath. In both cases, these decisions of the Judge of Compensation were then affirmed by the Appellate Division. While one of these claims was an occupational claim (and therefore, the burden of proof was on the claimant) in each case the Judge had to consider what weight, if any, to grant to a claimant’s testimony. In the first case, the Judge gave no weight to the claimant’s purely subjective and ‘self-serving’ testimony. In the second case, the Judge gave the claimant an award even though the objective proofs (the videotape evidence) directly contradicted the subjective complaints.

What this means for handling cases: the weight given to subjective evidence by a Judge of Compensation will vary from Judge to Judge, from vicinage to vicinage. As these cases illustrate, trial strategy, even in cases where the employer has a killer video showing the claimant working or recreating in an unimpaired manner, must consider the latitude given to the Judge of Compensation in deciding these cases.

Cases cited: Thomas v. Newark Public Schools System, A-4877-07T1 (App. Div. July 16, 2009); Worth v. United Parcel Service, A-0292-08T1 (App. Div. July 10, 2009).

Greg Lois is the managing partner of LOIS LLC and dedicates his practice to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 & 2017 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@loisllc.com